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i I I 404 136 NORTHFVESTERN REPORTER consequence to the municipality, and where he was compelled to employ counsel or suftel judgment to go against the interests affected, because the regular city attorney refused tc act or acted in opposition. 'Where such offi• clef succeeded in vindicating the stand tak• on, the court, In the above cases, holds that life municipality became liable for the sere ices of the attorney employed by the official to early ou the litlgatiou, on the ground that the emergency made it imperative, when the duly appointed legal representative refused to act, or was acting against the lntetests of the municipality, that other legal assist- ance be secured. But 1n the case at bar it is apparent from the writ that the attorney's services ren- dered by appellant's nsaignoc were not iu any proceeding either to compel or enjoin an official duty by the commission. Nor was its existence at stake. The statement in the writ that, because certain city officers would not do their duty, the result would wipe out the commission, is a mere conclusion not nterlting consideration. So that we have the fact that the attorney's services claimed were substantially all tendered in a man- damus proceeding instituted by the three commissioners and one Braithwaite, whose claiai for services the commission lead duly audited and ordered paid by warrant on the city treasurer. This warrant of Braithwaite the treasurer refused to pay, and the pro- ceeding resulted in judgment directing pay- ment. State ex rel. Briggs v. McIlrnlth, 113 Minn. 237, 129 N. VV. 377. The proceeding was the enforcement of a mere private right against the city, although incidentally it served to bring home notice to a contuma- cious city official that the commission pos- sessed some authority. The commission had performed Its full duty to the public, and exhausted its powers with reference to the Braithwaite claim, when that was audited sad ordered paid. No legal obligation. rested on the commission to,force the city treasur- er to pay it. ~Ve concur in the opinion of the, trial court that the claim sought to be enforced .is not a legal claim against the city. Affirmed. (118 Miaa. 53) GENERAL ]ELECTRIC CO. v. O'CONN);LL. (Supt•eme Court of Bfinnesota. May 31, 1912.) (Syllabus by the Court.) $J1LE8 (~ 354•)-ACTION FOB PBICE-ANSwaB -Daxuaaas. Answer, in an action for the price of ma- chiaery, setting tip fraud on the port of the seller in obtaining the written Contracts sued on end claiming damages on account thereof, held not obnoxious to demurrer, on the ground that its establishment would involve the admis- sion of parol evidence to vaey the terms or the aeope•of the said eontracta. [Ed. Note.-For other cases, see Sales, Cent. .Dig. ¢j 1003-1024;.. Dee Dig. ~ 354.'x] 'For other cues ass rams toplo and aectlen NUMHHR In (311nn. Appeal from DLslrict Court, St. Loula County; Wm. A. Cant, Judge. Action by the General Electric Company against Wick O'Connell. From an order overruling a demurrer to the answer, plain- tiff appeals. Alarmed. Iiaupt, OaL-ley & Dickey, of Duluth, for appellant. O. J. Larson and af, E. Louisell, both of Duluth, for respondent. PHILIP E. BRO`VN, J. This is an appeal by the plaintiff from an order overruling its demurrers to the answer and alleged coun- terclaims of the defendant, on the ground that the answer does not state facts sutS- cient to constitute a defense or counterclaim, It appeal's from the complaint that the Ft i R-ayne Electric Works, a corporation, on December 17, 1910, entered into a written contract with the defendant, whereby it sold to him certain rock drills and equip- ment for the agreed pt•ice of X1,550, payable one-halt in cash and the remainder with- in 30 days; and fot• a second cause of action the plaintiff alleges that on January 8, 1911, the said Ft. Bayne Electric \Vorks entered into another wt•itten contract with the de- fendant, whereby it sold him certain other drills sod apparatus for .the suns of X1,550, payable oa the same terms as above stated. Tho complaint Put•ther alleges, with refer- ence to both causes of action, that the said drills, equipment, and apparatus were duly delivered to the defendant; that on June 1, 1911, the said Ft. 1Vayne Electric `VoI•ks as- signed the said contracts to the plaintiff; and that no pat•t of the purchase price of the said drills and equipment has been paid, ezcept the sum of X775 ou each contract. Neither o! the said contracts, which were set out in the complaint, contained any warranty; and both included a provision to the effect that there were no understand- ings, promisee, or agreements on the pat•t of either of the parties, other than those slat- ed to the said contracts. . The defendant, in his answer, admitted the execution of the said contracts, the, de• livegy o! the property to him as c1aluleti by the plaintiff, and that the defendant had paid. nothing thereon, ezcept as 'stated !n the complaint, and set out, both as a defense and as as alleged counterclaim thereto, that before the defendant executed the said writ- ten eontracta the said Ft. Wayne Electric Works, to induce hiln so to do, falsely and fraudulently represented to him that it Lad made a test of the said drills and equipment with a cet•tain rocL- from the site of a •cer• loin tunnel, which the defendant Lad there' tofore contracted to construct, and which he was then constructing, and which rock was a fair sample of the material the defendant would encounter in the prosecution of such work; ell of which the said Ft. Wayne Elec- tric Works ,then knew.; that the said drllls Dig. t Jim. Die. Kay No. Seder ! Rep'r Iadeser